Menard, Inc. - Page 30

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               Section 7491, which is generally effective for court                   
          proceedings arising in connection with examinations commencing              
          after July 22, 1998, authorizes the burden of proof to be shifted           
          to the Commissioner if certain requirements are met.  Section               
          7491(a)(1) provides that “If, in any court proceeding, a taxpayer           
          introduces credible evidence with respect to any factual issue              
          relevant to ascertaining the liability of the taxpayer for any              
          tax imposed by subtitle A or B, the Secretary shall have the                
          burden of proof with respect to such issue.”  However, section              
          7491(a)(1) applies with respect to a factual issue only if the              
          requirements of section 7491(a)(2) are satisfied.  Section                  
          7491(a)(2) requires that a taxpayer must have complied with all             
          substantiation requirements, that a taxpayer must have maintained           
          all records required by title 26 and must have cooperated with              
          reasonable requests by the Secretary for witnesses, information,            
          documents, meetings, and interviews, and, if the taxpayer is a              
          corporation, the taxpayer must satisfy the net worth requirements           
          of section 7430(c)(4)(A)(ii).                                               
               In the instant case, petitioners did not raise the                     
          application of section 7491 with respect to any factual issue               
          either before or during trial.  In a footnote of their reply                
          brief, petitioners asserted that they had produced credible                 
          evidence with respect to the reasonableness of the amount of the            
          TMI expenses and that the burden of proof on that issue should              






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Last modified: May 25, 2011